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Before the
Federal Communications Commission
Washington, D.C. 20554
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)
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In the Matter of File No.: EB-06-TC-405
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Ureach Technologies, Inc. NAL/Acct. No.: 200832170058
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Apparent Liability for Forfeiture FRN: 0017954074
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ORDER
Adopted: February 17, 2011 Released: February 17, 2011
By the Chief, Enforcement Bureau:
I. introduction
1. In this Order, we find that a proposed forfeiture issued by the
Enforcement Bureau ("Bureau") to Ureach Technologies, Inc. ("Ureach")
should not be imposed. In a Notice of Apparent Liability for
Forfeiture ("NAL") issued on July 17, 2008, the Bureau found Ureach
apparently liable for a forfeiture in the amount of $9,000 for
delivering two unsolicited advertisements to the telephone facsimile
machines of two consumers. In its responses to the NAL, however,
Ureach demonstrates that it is not responsible for the advertisements
at issue. Based on our review of Ureach's responses and the record, we
now find that Ureach did not violate section 227 or our related rules,
and conclude that no forfeiture should be imposed.
II. Background and DISCUSSION
2. Section 227(b)(1)(C) of the Act makes it "unlawful for any person
within the United States, or any person outside the United States if
the recipient is within the United States . . . to use any telephone
facsimile machine, computer, or other device to send, to a telephone
facsimile machine, an unsolicited advertisement." The term
"unsolicited advertisement" is defined in the Act and the Commission's
rules as "any material advertising the commercial availability or
quality of any property, goods, or services which is transmitted to
any person without that person's prior express invitation or
permission in writing or otherwise." Under the Commission's rules, an
"established business relationship" exception permits a party to
deliver a message to a consumer if the sender has an established
business relationship with the recipient and the sender obtained the
number of the facsimile machine through the voluntary communication by
the recipient, directly to the sender, within the context of the
established business relationship, or through a directory,
advertisement, or a site on the Internet to which the recipient
voluntarily agreed to make available its facsimile number for public
distribution. These rules apply only in certain circumstances to a
"facsimile broadcaster," defined as "a person or entity that transmits
messages to telephone facsimile machines on behalf of another person
or entity for a fee." Under the rule, "a facsimile broadcaster will be
liable for violations of [the junk fax rules], including the inclusion
of opt-out notices on unsolicited advertisements, if it demonstrates a
high degree of involvement in, or actual notice of, the unlawful
activity and fails to take steps to prevent such facsimile
transmissions."
3. On September 11, 2006, in response to one or more consumer complaints
alleging that Ureach had faxed unsolicited advertisements, the Bureau
issued a citation to Ureach, pursuant to section 503(b)(5) of the Act,
for using a telephone facsimile machine, computer, or other device to
send unsolicited advertisements for hardware and office supplies to a
telephone facsimile machine, in violation of section 227 of the Act
and the Commission's related rules and orders. The citation informed
Ureach that within thirty (30) days of the date of the citation, the
company could either request an interview with Commission staff, or
provide a written statement responding to the citation.
4. On July 17, 2008, in response to two additional consumer complaints
concerning unsolicited facsimile advertisements for vending machines,
the Bureau issued the NAL to Ureach in the amount of $9,000. On July
24, 2008, and August 19, 2008, Ureach responded to the NAL, claiming
that it supports a set of core products, several of which contain
facsimile applications that are offered to individuals as well as
small businesses on a subscription basis. Ureach asserts that it did
not have any involvement with, or any notice of, any customers who
sent faxes that may have been in violation of the Commission's rules
and orders, and that Ureach did not send the faxes in question. In
addition, Ureach stated that it takes measures to prevent unauthorized
facsimile transmissions, such as requiring its subscribers to agree to
and adhere to its Terms of Services Agreement, which explicitly
prohibits subscribers from violating any local, state or national laws
and regulations, including the Act and all other related FCC rules and
regulations.
5. Upon review of the record, including Ureach's July 2008 and August
2008 Responses, we conclude that Ureach demonstrates that it is not
responsible for the advertisements at issue. Those advertisements
offered products that Ureach does not appear to provide, and were
apparently transmitted on behalf of other business entities, thus
supporting Ureach's assertion that it was not the "sender" of these
advertisements. Further, the record offers no evidence that is
inconsistent with Ureach's assertion that it does not have a "high
degree of involvement" with those senders' transmissions. For example,
the record contains no evidence that Ureach determined the content of
the faxed messages, provided a source of fax numbers, made
representations about the legality of faxing to those numbers, advised
a client about how to comply with the fax advertising rules, or had
actual notice of unlawful activity. Finally, Ureach appears to have
taken steps to prevent unsolicited facsimile transmissions, such as
requiring customers to adhere to a Terms of Service Agreement that
expressly prohibits such activity, and suspending services to entities
violating such agreement. We therefore conclude that the proposed
forfeiture in the NAL issued to Ureach should not be imposed because
it did not have a "high degree of involvement in, or actual notice of,
the unlawful activity."
III. ordering clauses
6. ACCORDINGLY, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended ("Act"), and 1.80(f)(4) of the
Commission's rules, 47 C.F.R. S: 1.80(f)(4), and under the authority
delegated by sections 0.111 and 0.311 of the Commission's rules, 47
C.F.R. S:S: 0.111, 0.311, the proposed forfeiture in the amount of
$9,000 issued to Ureach Technologies, Inc. in the July 17, 2008 Notice
of Apparent Liability for Forfeiture WILL NOT BE IMPOSED.
7. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Ureach
Technologies, Inc., Attn: David J. Warnock, Senior Vice President and
Chief Financial Officer, 2137 Highway 35, Holmdel, New Jersey 07733
and Lauren Thelander, Morrison Cohen LLP, 909 Third Avenue, New York,
NY 10022.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
See Ureach Technologies, Inc., Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 10988 (Enf. Bur. 2008).
Letter from Lauren Thelander, Morrison Cohen, LLP, 909 Third Avenue, New
York, NY 10022, to Office of the Secretary, FCC, and Colleen Heitkamp,
Chief, Telecommunications Consumers Division, Enforcement Bureau, File No.
EB-06-TC-405, dated July 24, 2008 ("July 2008 Response"); letter from
Lauren Thelander, Morrison Cohen, LLP, 909 Third Avenue, New York, NY
10022, to Office of the Secretary, FCC, and Colleen Heitkamp, Chief,
Telecommunications Consumers Division, Enforcement Bureau, File No.
EB-06-TC-405, dated August 19, 2008 ("August 2008 Response"). Information
in the record indicates that Ureach held the telephone numbers in question
during the relevant time period but that the numbers were actually used by
a customer of Ureach.
47 U.S.C. S: 227(b)(1)(C); see also 47 C.F.R. S: 64.1200(a)(3).
47 U.S.C. S: 227(a)(4); 47 C.F.R. S: 64.1200(f)(13).
An "established business relationship" is defined as a prior or existing
relationship formed by a voluntary two-way communication "with or without
an exchange of consideration, on the basis of an inquiry, application,
purchase or transaction by the business or residential subscriber
regarding products or services offered by such person or entity, which
relationship has not been previously terminated by either party." 47
C.F.R. S: 64.1200(f)(5).
See 47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3)(i), (ii).
47 C.F.R. S: 64.1200(f)(6).
47 C.F.R. S: 64.1200(a)(3)(vii) (emphasis added).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-06-TC-405, issued to
Ureach Technologies, Inc. on September 11, 2006.
See 47 U.S.C. S: 503(b)(5) (authorizing the Commission to issue citations
to non-common carriers for violations of the Act or of the Commission's
rules and orders).
July 2008 Response at 1-2; August 2008 Response at 2.
July 2008 Response at 2-3; August 2008 Response at 2.
Information in the record indicates that Ureach held the telephone numbers
in question during the relevant time period but that the numbers were
actually used by a customer of Ureach.
Compare 47 C.F.R. S: 64.1200(f)(6) ("[t]he term facsimile broadcaster
means a person or entity that transmits messages to telephone facsimile
machines on behalf of another person or entity for a fee") with 47 C.F.R.
S: 64.1200(f)(8) ("[t]he term sender for purposes of paragraph (a)(3) of
this section means the person or entity on whose behalf a facsimile
unsolicited advertisement is sent or whose goods or services are
advertised or promoted in the unsolicited advertisement").
See 47 C.F.R. S: 64.1200(a)(3); see also Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, Report and
Order, 18 FCC Rcd 14014, 14129 P: 195 (2003); Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, Report and
Order and Third Order on Reconsideration, 21 FCC Rcd 3787, 3808 P: 40
(2006).
47 C.F.R. S: 64.1200(a)(3)(vii).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-289
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Federal Communications Commission DA 11-289